Law and the Biosciences

You are between 55 and 65 years old. Your doctor has just told you about a new test that will reveal, with 90 percent accuracy, whether or not you will be diagnosed with Alzheimer’s disease within the next 15 years. Do you want to be tested?

This is not science fiction—it’s barely fiction at all. Advances in neuroimaging, genetics, and our understanding of Alzheimer’s disease mean that some doctors are already providing Alzheimer’s prediction. Many others will follow in the next few years. What will this mean for employment, health insurance, long-term care insurance, retirement planning, and retirement? What will it mean for families, for aging politicians, for Supreme Court hopefuls? Will we know that the tests really are accurate? Who will regulate them? And how?

I just finished an article on those issues. And the Stanford Interdisciplinary Group on Neuroscience and Society (SIGNS), which I direct, held a panel about these issues last January. I work in what I call law and the biosciences: the legal, ethical, and social implications of advances in the biological sciences. I focus on neuroscience, genetics, stem cell research, and, more generally, the ethics of doing research in all these areas. I love it.

I love it in part because it is endlessly fascinating and in part because it will be enormously important—to us, to our children, and our grandchildren. I’ll give you a few more examples of the kinds of exciting things in this field that we work on at the law school, from lie detection to fetal genetic diagnosis, end-of-life decisions, military neuroscience, and memory and the law.

Functional magnetic resonance imaging (fMRI) is revolutionizing our understanding of the human brain by allowing us to “see” what brain regions are “working” when we think, feel, do, believe, experience certain things. More than 25 peer-reviewed scientific articles in the last 10 years have claimed that fMRI patterns can determine when an experimental subject is telling a lie. Two U.S. companies—Cephos and No Lie MRI (I’m not making that name up!)—have been selling these fMRI lie detection services for several years.

“It has been said that, as the 20th century was the century of physics, the 21st will be the century of biology.” Hank Greely (BA ’74) (Photo by Steve Gladfelter)

In May 2010, lawyers sought to introduce these test results in two different court cases, a state court civil case in New York and a federal criminal prosecution in Tennessee. Most neuroscientists think this technology is premature, but should courts admit it? If so, could these lie detection tests be compelled and, if so, under what circumstances?

Our Center for Law and the Biosciences (CLB) helped the lawyers who successfully prevented admission of this evidence on those two cases. I’ve published extensively on this topic, along with collaborators from Stanford’s Center for Biomedical Ethics and the Department of Psychology. So have Stanford Law students and CLB fellows. Last winter Nita Farahany, a visiting associate professor at the law school this year, presented to both student and faculty seminars a great discussion of the implications of lie detection and other neuroscience techniques for the privilege against self-incrimination. (The Stanford Law Review is publishing the resulting article.)

We have been able to do genetic testing of fetuses for more than 40 years, but last year less than 2 percent of American pregnancies involved genetic testing. The methods of getting fetal DNA to test—amniocentesis and chorionic villus sampling—are expensive, invasive, unpleasant, risky, and don’t provide results until the 12th to 20th week of pregnancy. A new method of prenatal genetic diagnosis is being developed, in part by Steve Quake (BS ’91, MS ’91) of Stanford’s Department of Bioengineering. Within the next few years, this method should be able to use one small tube of the pregnant woman’s blood, taken as early as the fifth week of pregnancy, and do genetic tests on the fetus for Down syndrome, for Tay-Sachs disease, cystic fibrosis, sickle cell disease, breast cancer risk, Alzheimer’s disease risks, and thousands of other illnesses. And for sex—and soon for hair color, eye color, skin color, and other traits.

How do we decide when this technique, called “non-invasive prenatal diagnosis” or NIPD, is safe and effective to use? Will the FDA regulate it? Should governments restrict its uses to serious childhood diseases? To serious diseases whenever they arise? To any diseases? Or should governments let parents make any choices they want—including aborting healthy fetuses because, for example, they want a deaf child? How accessible will this technique be? Medicaid, the joint federal-state program for the poor, pays for the births of about 40 percent of America’s children. Will states pay for the procedure, even though it may lead to more abortions?

The CLB, in conjunction with the School of Medicine’s Center for Integration of Research on Genetics and Ethics (CIRGE), held the first major conference on NIPD in 2009. I published a commentary about it in Nature early in 2010; UC Hastings College of the Law Professor Jaime King, a former CLB fellow, is publishing several law review articles about it. And CIRGE has a continuing project, of which I am a part, on the social consequences of NIPD.

In early 2010 an article described how, using fMRI technology, researchers had been able to communicate with a man who apparently had been in a persistent vegetative state, unresponsive to any outside stimuli, for five years. Within six weeks, CLB held a panel at the law school to discuss the legal and ethical implications, including how the technology might be used in making end-of-life decisions. This past spring, the Stanford Interdisciplinary Group in Neuroscience and Law (SIGNAL), a group founded by Dr. Emily Murphy ’12, a Stanford law student, brought the lead author of the second such study to the law school to describe further findings.

In 2009 SIGNAL held a discussion of a new article about various possible uses of neuroscience by the military and the intelligence community. The discussion was intense—and led to a publication by eight SIGNAL members (all students or staff) of their dissection of the initial article.

Scientists increasingly are discovering how to detect and how to manipulate memories—dulling emotional reactions or fabricating entirely new, but convincing, recollections. In April, CLB and SIGNS with sponsorship from two School of Medicine groups held a conference to explore the legal ramifications of these technologies. I’m a co-author on one piece about using memory detection in criminal investigations.

It has been said that, as the 20th century was the century of physics, the 21st will be the century of biology. It is clear that understanding, and managing, the legal and social implications of our new knowledge about biology will be a deeply interdisciplinary task. Stanford Law School—with our faculty, fellows, and students and with our many deep connections to others working on these issues at Stanford and around the world—is on the job. SL

Hank Greely is also the Director, Center for Law and the Biosciences; Professor (by courtesy) of Genetics, Stanford School of Medicine; Chair, Steering Committee of the Center for Biomedical Ethics; and Director, Stanford Interdisciplinary Group on Neuroscience and Society.